Lord McIntosh of Haringey: I too have just been reading paragraph 57 of the Explanatory Notes. I read the part which the noble Lord, Lord Skelmersdale, did not read out. It says that,

"while local authorities, schools, hospitals, non-departmental public bodies and other public sector bodies could be the sole beneficiaries of an order, Ministers and government departments cannot be the sole beneficiaries; someone else must ... benefit".

The difference is that Ministers and government departments are involved in putting through legislation and making decisions; all the rest provide the services. It seems to me entirely appropriate that deregulation powers should apply to public sector bodies which provide services, because that benefits those for whom the services are provided. Therefore, I do not find paragraph 57 at all extraordinary.

In a sense, with this amendment we are going back over our discussions in relation to the issue of Clause 1 stand part. Clearly I did not make an adequate impression on the noble Lord, Lord Norton. I hoped that I had, but I accept that it is entirely legitimate to return to the issue of ministerial intentions and how those intentions are adequate. The noble Lord, Lord Norton, has exposed the problems in relation to this issue now as he did, and as I did, when we debated Clause 1. The difficulty is in how to craft--to use his word--a test which excludes those matters which should not be included.

The defence that I used when debating Clause 1, which I repeat now, because it is fundamental to the Bill, was twofold. First, the Bill is concerned only with burdens and a large number of the constitutional matters that the noble Lord has raised could be described as burdens only by the most extreme stretch of the imagination. Secondly, the procedures and safeguards in the Bill are such as to make it unattractive to seek to choose this route in contrast to primary legislation unless there is a genuine advantage, not particularly to government but to the populace as a whole.

The noble Lord, Lord Norton, has acknowledged that the Delegated Powers and Deregulation Committee said that this appeared to be an impossible task. I repeat my offer and the offer made by my noble and learned friend Lord Falconer that if anyone comes up with an adequate definition we shall listen seriously to it, but nobody has yet. It is quite clear, as the Bill confirms, that we would not and could not use the Bill for constitutional changes.

The amendment includes the Crown, the courts and Parliament, but can anyone imagine how we could make a regulatory reform order to make a change, for example, to the law of primogeniture for the Crown or to the quinquennial Act for the lifetime of a Parliament? Of course not, and that applies to more fundamental issues such as the mode of trial legislation that relates to the courts. That legislation, which came before Parliament in the past two sessions, is not a

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suitable subject for regulatory reform orders and nobody could conceivably claim that it was. That Act would not get through the procedures provided in the Bill because it would be rejected by public consultation, by the committees and, in the end, by Parliament.

On the other hand, I am not at all expert on the Crown, not even the one that sits in the Tower of London, so I do not know what examples the noble Lord, Lord Norton, has of measures that wicked Ministers may put forward affecting the Crown, but not Ministers of the Crown. I know that there are plenty of examples of reforms of court procedures that would be suitable for regulatory reform orders. In respect of Parliament I have not heard of any examples of the kind of parliamentary legislation that the noble Lord has in mind.

I applaud the attempt. I am willing to listen to future attempts, but this amendment does not achieve anything like the purposes that it sets out to achieve.

Lord Norton of Louth: I find that a disappointing answer and I give three reasons for saying so. First, the noble Lord said that the amendment would not have the effect that I claimed because of the definition of "burdens". However, the definition of "burdens" under Clause 2(1) is enormously broad. I also draw attention to the fact that in its opening line the clause uses the word "includes". I believe that the definition is such that most legislation falls within the scope of this measure. That is the first and quite fundamental point.

The second point is that the Minister advanced examples of when it would not be appropriate to use the amendment in relation to those areas that I have mentioned. That is fine, but I am not concerned with that. I am concerned with those examples of when it could be used. To give instances of when it could not be used does not exclude the possibility of its use in relation to other aspects of the areas covered by my amendment.

My third point is, as the noble Lord rightly said, that consultation is in doubt. I have already conceded what I recognise is a serious point about parliamentary scrutiny. Consultation in the process is advisory. Of course, it has to be fed in and the Minister has to report, but that is the extent of it. If the two Houses of Parliament were in favour of the proposal, it could go through.

The Minister's response to my argument is extremely disappointing for the reason that I have just given. He referred to our clause stand part debate on Clause 1. My argument in this context is closely linked with the points that I advanced then. I have the specific problem that I have mentioned, but I also have a wider problem. The Minister said, "Yes, if anyone comes forward with a way to limit the effect, that would be fine". However, his comments make it clear--this follows on from the report by the Select Committee on Delegated Powers andDeregulation--that he does not think that there is any way to ring-fence the matter. That is extremely disappointing. That returns us to my

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point about greater sensitivity on the part of the Government. They should say, "No, we do not think that that proposal meets the point, but we are sensitive to it and we shall further reflect on it". I concede that the Minister said, "Yes, come forward", but that is very much a reactive stance. It does not really engage with the argument about the constitution.

9.45 p.m.

Lord McIntosh of Haringey: In that case, I apologise. It was certainly not my intention to suggest that it is only for the noble Lord, Lord Norton, or the Delegated Powers and Deregulation Committee, or anyone other than the Government, to think about a test. Clearly, that issue concerns the Government--the matter will actively concern us between now and later stages of the Bill's passage.

Lord Norton of Louth: I want to pursue that extremely important point. On the Minister's first suggestion, I was not implying that he said that it is only up to others to take the approach that he described, or that only the Government could think it through. The second part of his answer involved the way in which the Government will reflect on what I regard as a very important issue. I argued that constitutionally this is an extraordinarily important Bill. I hope that the Minister will return to the Dispatch Box and go a little further than he did earlier.

Lord McIntosh of Haringey: I may not do so in a positive manner. The noble Lord suggested two ways of ring-fencing, the first of which involved what he called class exclusions. He will appreciate the difficulties that are associated with that. To be honest, he will appreciate the difficulties that are associated with his first attempt at class exclusions. His second approach involved ostensive exclusions. He gave the example of legislation enacted before 1900 or particular Bills. He will appreciate the difficulty with that; we all share them.

Lord Norton of Louth: The Minister has not quite assuaged me, because he did not really respond to or pick up on my second point, which I offered as an alternative. Strictly speaking, he is correct, because I was moving Amendment No. 26, rather than the alternative that I suggested. He might say, "The alternative has something to offer". There are advantages to both approaches. The Minister's point is that there are disadvantages to both. The advantage with the second approach is that it is slightly more finely honed in some respects, although it would create a substantial schedule. However, that is not in itself a conclusive argument against it, because there was an enormously long schedule to the Freedom of Information Bill, when we debated it. That is one route forward.

The Minister might say, "Yes, we are sensitive to the matter; we shall go away and think about it actively. We shall not simply be open to suggestions". If he did so, I should be prepared to withdraw the amendment.

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However, without such a commitment, I should be inclined to press the amendment. I want a slightly more positive response from him.

Lord McIntosh of Haringey: I do not want to have to respond under such pressure. Frankly, I do not mind if the noble Lord divides the Committee; that would not displease me at all. I thought that I had said that I accepted that a serious issue is involved, and that it is the Government's responsibility to pursue the matter actively between now and later stages of the Bill's passage. If that does not meet the noble Lord's wishes, he must do as he thinks fit.

Lord Norton of Louth: I am grateful for that response. It goes somewhat further than the previous answer.